Saturday, July 23, 2011

Proving breach of fiduciary duty (BoFD) claim

Breach of fiduciary duty: What does it take to prevail with such a claim?
To prevail on a breach of fiduciary duty claim, a plaintiff must first prove the existence of a fiduciary relationship between the plaintiff and the defendant.  See Lundy v. Masson, 260 S.W.3d 482, 501 (Tex. App.—Houston [14th Dist.] 2008, pet. denied).  “[A] fiduciary duty arises out of agency law based upon a special relationship between the two parties.”  In re Bass, 113 S.W.3d 735, 743 (Tex. 2003) (orig. proceeding) (citing Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 200 (Tex. 2002)); see also Shands v. Tex. State Bank, 121 S.W.3d 75, 77 (Tex. App.—San Antonio 2003, pet. denied) (stating that an agency relationship creates a fiduciary relationship as a matter of law). 


An agent is a person who is authorized to act for another and is subject to the control of the other.  SITQ E.U., Inc. v. Reata Rests., Inc., 111 S.W.3d 638, 652 (Tex. App.—Fort Worth 2003, pet. denied) (noting that agency is generally a question of fact and that the trial court, as factfinder, was free to resolve any inconsistencies in the conflicting testimony to support its implied finding of agency).  “Texas law does not presume agency, and the party who alleges it has the burden of proving it.”  IRA Res. Inc. v. Griego, 221 S.W.3d 592, 597 (Tex. 2007); Tex. Cityview Care Ctr., L.P. v. Fryer, 227 S.W.3d 345, 352 (Tex. App.—Fort Worth 2007, pet. dism’d) (same).

SOURCE: Fort Worth Court of Appeals - 02-10-00045-CV - 7/21/11

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